On a former appeal of this case we held that the trial judge erred in refusing to give for defendant the general affirmative charge — this upon the theory that under the pleadings the plaintiff had assumed the burden of proving that the mules shown to have been injured were injured by reason of the negligence of the defendant, or its servants in charge of the train, and that there was no evidence to show such an injury. A. C. L. R. R. Co. v. J. S. Carroll Merc. Co., 206 Ala. 320,89 So. 509.
On remandment the pleadings were revised, and the cause went to trial on a count based merely on the defendant's common-law liability for injury to 4 mules received by it as a common carrier for delivery to the plaintiff — the only plea being the general issue.
The evidence showed without dispute that 4 mules of the 27 in the car were delivered in a damaged condition — one of them with a broken hip joint, from which she died, and the other three with skinned places or abrasions on the lower parts of their legs, which definitely impaired their selling value.
The law is well settled, and the defendant concedes, that this showing cast upon the defendant carrier the burden of showing, as a condition to its nonliability, that the injuries in question resulted from the nature or propensities of the animals, without proximately causative negligence on the part of the defendant or its servants. S. N. A. R. R. Co. v. Henlein, 52 Ala. 606, 614, 23 Am. Rep. 578; W. Ry. Co. v. Harwell, 91 Ala. 340, 345, 8 So. 649; E. T. V. G. R. R. Co. v. Johnston, 75 Ala. 596, 51 Am. Rep. 489; 10 Corp. Jur. 124, § 152.
In 10 Corpus Juris, 122, 123, § 149, it is correctly stated that "if there is loss or injury due to the peculiar nature and propensities of the animals, the carrier is not liable, unless the loss or injury could have been prevented by the exercise of reasonable foresight, vigilance, and care on its part."
We think the evidence in this case tends strongly to support the theory that the injuries shown were the result of the nature and propensities of the animals themselves. But, as the authorities all hold, that would not relieve the defendant of liability, unless it showed also an absence of negligence proximately contributing to the injuries. The question of the defendant's negligence, vel non, was therefore a material factor in the case, and should not have been withdrawn from the jury. The rules of liability as stated in excerpt No. 2 from the oral charge were entirely erroneous, and that error was necessarily prejudicial to the defendant.
For that error the judgment will be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur. *Page 286